The nation is embroiled in a debate over the death penalty. Each day brings fresh accounts of racial bias, incompetent counsel, and misconduct committed by police officers or prosecutors in capital cases. The public increasingly questions whether the ultimate penalty can be administered fairly - free from the taint of racism; free from the disgrace of counsel sleeping through a client’s trial; free from the risk of executing an innocent person. Support for the death penalty is falling, and across the country, momentum gathers for a moratorium. Even death penalty supporters - such as Illinois Governor George Ryan - have acknowledged the need for fundamental reform.
In Texas, the call for reform has been deflected by state officials’ aggressive defense of the Texas system. Repeatedly, Governor Bush and others have defended the administration of the death penalty. Texas Attorney General John Cornyn has gone so far as to describe the death penalty in Texas as “a model for the nation.”
This report challenges that confident assessment. To show why Texas justice is not a model for anyone, we have undertaken a preliminary examination of the Texas death penalty system. We have conducted original research into the discriminatory charging practices of Texas prosecutors. We studied hundreds of cases, including every published decision (and many unpublished decisions) of the Texas Court of Criminal Appeals in capital cases in the modern death penalty era. We examined over half of the capital post-conviction appeals filed in Texas since 1995 - a stage of the appeals that has never before been systematically scrutinized - and we evaluated treatment given to those appeals by the state courts.
In this Report, we explain and lay bare many disturbing features of a thoroughly flawed system.
In this Chapter, we set forth a preliminary introduction to the Texas death penalty system: the death row population, the procedure by which people are sentenced to death, and the outlines of the torturous path of post-conviction appeals.
We examined and assembled in this report numerous examples of Texas death penalty trials in which the prosecutors failed to discharge their duty to learn, disclose, and speak the truth. After an extensive review of Texas death penalty cases in the post-Furman era, we identified 84 cases in which a Texas prosecutor or police officer deliberately presented false or misleading testimony, concealed exculpatory evidence, or used notoriously unreliable evidence from a jailhouse snitch.
Texas prosecutors freely engage in tactics that other jurisdictions have found violate due process. In multiple-defendant cases, for example, Texas prosecutors have presented irreconcilably inconsistent theories of the same crime: to the first jury, the prosecutor presents evidence and argument that ‘A’ shot the victim while ‘B’ stood by; in a later trial to a different jury, the same prosecutor presents evidence and argument that ‘B’ shot the victim, while ‘A’ stood by.
In other cases described in our report, police and prosecutors have suppressed evidence showing that someone other than the defendant committed the crime, have lost or destroyed potentially exculpatory evidence, have resisted the forensic examination of evidence that could exonerate the defendant, have manipulated witnesses’ testimony to support the prosecution’s theory despite contrary evidence, and have used threats against defendants or their family members to coerce confessions.
Several innocent men have been released from Texas’s death row. These wrongful convictions usually stemmed from misconduct committed by prosecutors or police officers. In the overwhelming majority of these cases, the misconduct that sent these men to death row only came to light years after the trial had ended. Since official misconduct is by its nature hidden, it is always difficult to expose. Today, new procedures sharply limit a defendant’s ability to secure review of his case in state and federal court, making it unlikely that the truth about the wrongful conviction of an innocent person will ever come to light.
We treat separately another kind of official misconduct: those cases involving junk science, including “predictions” of future dangerousness, hair comparison evidence, and bite mark testimony. Of the sample we examined, we found 160 cases which contained some form of “scientific” evidence of dubious reliability.
Because many case records and court opinions are unavailable, these numbers are extremely conservative, and likely represent only a fraction of the cases in which the state relied upon junk science to obtain a conviction and sentence of death.
In this Chapter, we studied the persistent racism in the Texas death penalty, interviewing practitioners across the state regarding the jury selection process, researching the effect of discrimination statewide, and conducting original research into the charging practices of one East Texas county.
Though more comprehensive statewide research must be done, our data reveals a clear pattern of disparity in the punishment meted out to those convicted of killing whites as compared to those convicted of killing non-whites, despite the fact that black males are the most likely murder victims. Our research indicates that the death penalty is used most often to punish those convicted for murdering white women, the least likely victims of murder.
Despite a growing national consensus that defendants with the mental age of a child should not be subject to the death penalty, Texas continues the practice of allowing the mentally retarded to be sentenced and put to death. Thirteen states and the federal government have banned the execution of the mentally retarded. Just last year, the Texas Senate passed a bill to ban the execution of the mentally retarded, but the bill was scuttled by the Texas House of Representatives.
Although there are many inmates - both those executed and those who are still on death row - who have never undergone even preliminary I.Q. testing, we know that, to date, Texas has executed at least six mentally retarded inmates. In this section, we profile two such men: one who has been executed; one who is still on death row.
Recent publicity has focused the nation’s attention on Texas defense lawyers who slept through capital trials, ignored obvious exculpatory evidence, suffered discipline for ethical lapses, or used drugs or alcohol while representing an indigent capital defendant at trial. Defenders of the system dismiss these cases as an aberration. Our research indicates otherwise.
Further, the Texas Court of Criminal Appeals routinely denies any remedy to inmates whose court-appointed lawyers performed poorly. The Court has forced lawyers to remain on capital cases even when the lawyers themselves expressed doubts about their ability to handle such cases, and it has denied relief to two death row inmates whose lawyers slept through trial. The Court’s rationale in these two cases - that the inmate failed to show that he was harmed by counsel’s sleeping - reflects a profound disregard for the constitutionally-guaranteed right to effective assistance of counsel.
When the truth has been hidden by the State or ignored by defense counsel at trial, post- conviction appeals are the only opportunity an inmate has to set the record straight. Yet the quality of counsel in these appellate proceedings has received almost no attention. To evaluate whether post-conviction counsel in Texas are providing the representation demanded by a capital case, we examined over half the post-conviction appeals filed in Texas since 1995 (187) - a study never before conducted. Our findings are deeply unsettling.
Further, the Court of Criminal Appeals has displayed disgraceful indifference to these problems. The Court has taken no action to protect the rights of defendants - who were promised “competent” counsel by the Texas Legislature - even when the post-conviction lawyers it appoints have displayed obvious signs of inexperience and incompetence. Not only is there no standard of review for these appointed attorneys, there also is no oversight of their work.
Officials in Texas insist that redundant levels of appellate review will prevent wrongful convictions, and that deficiencies at trial will be corrected in post-conviction appeals. This rhetoric of “super due process” is meant to reassure the public that, despite the astounding number of executions in Texas, each case has received close scrutiny in the state and federal courts. In many cases, however, the notion of careful and meaningful review is a myth. For example, our study found that:
Few cases illustrate the myth better than Gary Graham’s. After Graham’s initial post- conviction proceedings proved unsuccessful, his new post-conviction attorneys found compelling evidence to support Graham’s longstanding claim of innocence. Graham spent the next seven years trying to secure an evidentiary hearing - in state and federal courts - at which the strength of his newly developed evidence of innocence could be measured against the prosecution’s single eyewitness. He never got it. The state courts adopted “findings” penned by the prosecutor assessing Graham’s innocence claims as if there had been a hearing where witnesses testified - but there was no such hearing. The prosecutor’s version of the facts controlled the litigation in subsequent proceedings, and no federal court ever reviewed the merits of Graham’s claims.
In our final chapter, we profile the cases of six men executed despite substantial and compelling doubt about their guilt. Some of these cases received widespread national attention, like the case of Gary Graham. Others were executed in obscurity. These six men, however, have at least two things in common. In each case, the truth came to light long after the trial - long after it had been suppressed by the State of Texas, ignored by defense counsel at trial, or dismissed by the courts. And in each case, the truth came too late.
Five years ago, the State of Texas implemented several changes in the system of review of death penalty convictions. These changes, however, have done very little to repair a system that needs fundamental reform. Indeed, some of the changes have backfired. The reforms to state post-conviction appeals were intended to speed up the process, while ensuring fairness by granting defendants a right to competent legal assistance. However, many of the lawyers appointed under the law do not know how to provide effective representation in state habeas proceedings and end up grossly mishandling this critical stage of the case. Thus, the 1995 reforms created merely an appearance of review, and thwarted meaningful access to the state and federal courts. Neither this reform, nor any other, has slowed the Texas death penalty system’s powerful but flawed rush to execution.
In this report, we have assembled an unprecedented volume of objective evidence that raises profound questions about the fairness of how and when the death penalty is applied. We articulate the scope and breadth of the underlying problems, and offer preliminary recommendations for change. We confirm the critical need for a thorough investigation of every capital case, and we show that all too often, such an investigation either does not take place, or takes place too late for the courts to consider it. In short, we lay bare a system in desperate need of reform. We urge all who are committed to justice to read our report thoughtfully. It compels the conclusion, reached by increasing numbers of Americans, that our current method of enforcing the death penalty does violence to the ideal of basic fairness that is supposed to be the foundation of our criminal justice system.
*Texas Defender Service
Texas Defender Service (TDS) is a private, 501(c)(3) non-profit organization. Since 1995, TDS has provided direct representation to indigent inmates on Texas’ death row, consulted with other lawyers litigating such cases, and intervened in unusual cases where expert legal assistance was urgently needed. We strive to improve the quality of representation for Texas death row inmates in three ways: Direct Representation of Death-Sentenced Prisoners, Consulting, Training and Case-Tracking; and TDS’ Capital Trial Project.